Ex Parte Howard et al

Patent Trial and Appeal BoardOct 22, 2012

11472436 (P.T.A.B. Oct. 22, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte HENRY EDWARD HOWARD and RICHARD JOHN JIBB ____________________ Appeal 2010-007175 Application 11/472,436 Technology Center 3700 ____________________ Before EDWARD A. BROWN, MICHELLE R. OSINSKI, and SCOTT E. KAMHOLZ, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-007175 Application 11/472,436 2 STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-5. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Claim 1 is the sole independent claim on appeal and is reproduced below: 1. A plate-fin heat exchanger comprising: a plurality of layers including a first layer and a second layer for indirectly exchanging heat between a first fluid flowing through the first layer and a second fluid flowing through the second layer, each of the first and the second layer having fins; the plurality of layers stacked one on the other to form a stack, thereby to define a height, a length and a width for the plate-fin heat exchanger, the length being longer than the width; each of the first layer and the second layer having two sections extending along the length of the plate-fin heat exchanger with a central location of the plate-fin heat exchanger situated between the two sections; each of the two sections having an inlet and an outlet for introduction and discharge of the first fluid and the second fluid into and from the two sections of the first layer and the second layer, respectively; the inlet of one of the two sections connected to the inlet of the other of the two sections and the outlet of the one of the two sections connected to the outlet of the other of the two sections so that the first fluid and the second fluid divide into two subsidiary streams upon the 1 Appellants identify the real party in interest as Praxair Technology, Inc. Br. 1. Appeal 2010-007175 Application 11/472,436 3 introduction into the two sections of the first layer and the second layer, respectively, and combine upon the discharge from the two sections; and the inlet and the outlet of the one of the two sections and the inlet and the outlet of the other of the two sections positioned so that the two subsidiary streams flow parallel to the length of the plate-fin heat exchanger. REJECTION Appellants seek review of the rejection of claims 1-5 under 35 U.S.C. § 102(b) as anticipated by Hays (US 3,587,731, iss. Jun. 28, 1971). Ans. 3- 14. ANALYSIS Claim 1 Only issues and findings of fact contested by Appellants in the Brief will be addressed. See Ex parte Frye, 94 USPQ2d 1072, 1075-76 (BPAI 2010). The Examiner found that Hays discloses all of the limitations of claim 1. Ans. 3-6. Appellants first contend that Hays fails to disclose a plate-fin heat exchanger in which “each of the first layer and the second layer hav[e] two sections extending along the length [of the plate-fin heat exchanger] with a central location of the plate-fin heat exchanger situated between the two sections.” Br. 10. Appellants’ contention is unpersuasive. The Examiner’s findings are supported by Hays. As illustrated in the Examiner-annotated drawing of Fig. 2 appearing on page 9 of the Answer, the Examiner found that Hays discloses first and second layers (Ans. 3), and this finding was conceded by Appellants. Br. 9. As illustrated in the Examiner-annotated drawing of Fig. 3 on page 9 of the Answer, the Examiner found that Hays further discloses that the first and second layers Appeal 2010-007175 Application 11/472,436 4 have two sections extending along the length of the plate-fin heat exchanger (e.g., sections B, J in the first layer and sections C, I in the second layer). Ans. 8-9. The Examiner also found that Hays discloses a central location of the plate-fin heat exchanger (e.g., middle plane of F and G as illustrated in Examiner-annotated drawing of Fig. 3 appearing on page 9 of the Answer) situated between the two sections (e.g., between sections B, J in the first identified layer and between sections C, I in the second identified layer). Id. Appellants further contend that sections B, J, C, I in Hays cannot comprise the “sections” recited in the claim if this claim is properly interpreted in light of the Specification. Br. 11-12. Appellants seem to contend that a “section” when interpreted in light of the Specification must mean a part of a layer that is longitudinally separated from another part of that layer. This contention is not persuasive. Appellants do not direct us to a definition of the term “section” in the Specification. Ans. 10. The Examiner determined than an ordinary meaning of the term “section” is broad enough to encompass sections B, J and C, I in Hays that are separated parts of the respective first and second layers that extend along the length of the heat exchanger. See Ans. 10. Appellants do not identify any particular disclosure in the Specification inconsistent with this ordinary meaning. Accordingly, Appellants have not persuasively argued why Hays fails to disclose each of the first and second layers having “two sections extending along the length of the plate-fin heat exchanger with a central location of the plate-fin heat exchanger situated between the two sections” in accordance with the ordinary meaning of the term “section.” Appellants further contend that Hays also fails to disclose: (a) “each of the two sections havin[g] an inlet and an outlet;” (b) “connected inlets of Appeal 2010-007175 Application 11/472,436 5 each of the two sections so that the fluids divide into two subsidiary streams upon introduction into the two sections of the first and second layer and the connected outlets so that the fluids combine upon discharge from the two sections;” (c) “the inlets and the outlets of the two sections positioned so that the two subsidiary streams flow parallel to the length of the plate-fin heat exchanger.” Br. 11. These contentions are based on Appellants’ urged construction of “section” and are unpersuasive for at least the reasons discussed supra. Additionally, statements that merely point out what a claim recites are not considered an argument for separate patentability of the claim. See 37 C.F.R. § 41.37(c)(1)(vii) and In re Lovin, 652 F.3d 1349 (Fed. Cir. 2011) (Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and naked assertion that the corresponding elements were not found in the prior art). For the foregoing reasons, we find that the Examiner did not err in finding that Hays discloses all of the limitations recited in claim 1 and we sustain the rejection of claim 1 under § 102(b). Claim 2 Claim 2 recites that “the central location is situated equidistantly from the ends of the plate-fin heat exchanger.” Appellants contend that the central location of Hays identified by the Examiner (i.e., middle plane of F and G) would not be between the ends of the heat exchanger, but between the top and bottom of the heat exchanger. Br. 13. Appellants seem to contend that an “end” must be construed to mean a longitudinal or Appeal 2010-007175 Application 11/472,436 6 lengthwise extending boundary of the plate-fin heat exchanger. This contention is not persuasive since the term “end” can reasonably be construed more broadly than Appellants appear to urge. Since Appellants do not direct us to a formal definition of the term “end” in the Specification, it is appropriate to consult a general dictionary definition of the term for guidance in determining its ordinary and customary meaning. See Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010). An ordinary meaning of the term “end” is broad enough to encompass the so-called top and bottom boundaries of the heat exchanger. Appellants do not identify any particular disclosure in the Specification inconsistent with this ordinary meaning. Accordingly, Appellants have not persuasively argued why Hays fails to disclose the central location being situated equidistantly from the “ends” of the plate-fin heat exchanger in accordance with the ordinary meaning of the term “end.” For the foregoing reasons, we find that the Examiner did not err in finding that Hays discloses all of the limitations recited in claim 2 and we sustain the rejection of claim 2 under § 102(b). Claim 3 Claim 3 recites that: the plate-fin heat exchanger has opposite sides formed by the length of the plate-fin heat exchanger, the inlet and the outlet include headers in an orientation parallel to the height of the plate-fin heat exchanger and situated at locations at least along one of the opposite sides of the plate-fin heat exchanger at or adjacent to the ends of the plate-fin heat exchanger (emphasis added). Appeal 2010-007175 Application 11/472,436 7 The Examiner found that Hays discloses semicircular volumes (e.g., inlet and outlet manifolds as illustrated in Fig. 2) that are in orientations parallel to the height of the plate-fin heat exchanger since they have dimensions extending in the height dimension. Ans. 6. The Examiner also found that Hays discloses that the semicircular volumes of Fig. 2 are situated at locations along opposite sides of the plate-fin heat exchanger at or adjacent to ends of the plate-fin heat exchanger. Id. Appellants contend that the headers situated on opposite sides of the plate-fin heat exchanger (i.e., the opposite sides formed by the length of the plate-fin heat exchanger) include header 136a which is an inlet for stream 138 into layer A and header 122b which is an outlet for stream 122 for layers E and K. Br. 13. Claim 1 (from which claim 3 indirectly depends) recites that the inlet and the outlet of the sections are positioned so that the subsidiary streams flow parallel to the length of the plate-fin heat exchanger. The Examiner has not identified any disclosure in Hays of an inlet and outlet that meets both the limitations that (i) the inlet and outlet be positioned for flow parallel to the length of the heat exchanger as recited in claim 1 and (ii) the inlet and outlet include headers situated at locations along the opposite sides formed by the length of the plate-fin heat exchanger as recited in claim 3. Rather, the Examiner identified Hays’ disclosure of the openings where fluid can either enter or exit sections C, I and B, J as meeting the limitation for the inlet and outlet in claim 1, and the Examiner identified Hays’ disclosure of the headers such as 136a and 122b where fluid can either enter or exit sections A or E, K as meeting the limitation for the inlet and outlet in claim 3 as pointed out by Appellants. The Examiner has failed to establish that Hays Appeal 2010-007175 Application 11/472,436 8 discloses an inlet and outlet meeting all of the limitations for the inlet and outlet elements set forth in claim 3. For the foregoing reasons, we do not sustain the rejection of claim 3 under § 102(b). Claims 4 and 5 Claims 4 and 5 depend from claim 3. The Examiner’s findings with respect to claims 4 and 5 do not remedy the deficiency of the Examiner’s rejection with respect to claim 3 as discussed supra. Accordingly, we do not sustain the Examiner’s rejection of claims 4 and 5 under § 102(b) as anticipated by Hays. DECISION The Examiner’s rejection of claims 1 and 2 under § 102(b) as anticipated by Hays is AFFIRMED. The Examiner’s rejection of claims 3-5 under § 102(b) as anticipated by Hays is REVERSED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART Klh